GIVING BACK: Combating Human Trafficking

Volume 29Number 5

By
Martina E. Vandenberg

Martina E. Vandenberg, a former partner at Jenner & Block LLP, is currently a Fellow at the Open Society Foundations in Washington, D.C. She has worked on human trafficking issues for more than 16 years and is a member of the Freedom Network (USA).

When a trafficking victim escapes from a trafficker, that escape is fraught with risk and uncertainty. Immediate questions arise. A victim swept up in a brothel raid or work site inspection faces even more troubling questions. Have I been arrested? Will I be detained? Will I be deported? If not, where will I live? How can I live? Will my trafficker find me? Will I see my family again? Will the trafficker go to jail? Will I?

Social workers and case managers at non-governmental organizations (NGOs) across the United States have become adept at handling the immediate logistical questions. With some funding from state and federal agencies, these dedicated NGO staff members find emergency housing, provide clothing, and distribute the limited benefits available to trafficking victims in the United States. Immigration attorneys on staff at those NGOs answer the immigration questions. Expert NGO staff members, some working at non-governmental agencies with more than a decade of anti-trafficking experience, stabilize their clients. Trafficking victims begin to move from crisis to recovery.

But over the months that follow the escape, tricky legal questions often emerge. What if the trafficker and the victim are married? Can they divorce? Who will have custody of any children? How can those children be brought to the United States? Can other family members be brought to the United States? What if the trafficking victim committed crimes in the course of the abuse? What if the victim requires foster care? What if the federal government decides not to prosecute the case? What if the trafficking victim faces eviction from his or her apartment? And what if the trafficking victim wishes to sue the trafficker directly?

The Role of Pro Bono Lawyers

Although the NGOs handling trafficking cases in the United States do yeoman’s work, there are still some legal issues that require outside assistance. To resolve these issues, trafficking victims in the United States desperately need pro bono attorneys. NGOs have made enormous strides in partnering with pro bono law firms—and with individual pro bono attorneys—nationwide. How can pro bono attorneys assist? The descriptions below provide a snapshot of legal needs that may arise in a trafficking case.

Representation during a criminal investigation. Trafficking victims frequently find the criminal prosecutions of their traffickers terrifying. Fearful of the traffickers, a trafficking victim may be concerned for his or her safety, as well as that of family members. Pro bono advocates, working closely with NGO experts, can guide victims through the criminal case. Asserting the victim’s rights under the National Crime Victims Rights Act is the key to this representation. Does the victim need witness protection? Criminal defense? Criminal restitution? Immigration relief through “continued presence” (a temporary immigration status available to trafficking victims)? A pro bono attorney can assist in advocating for these rights.

Representation on criminal restitution issues. Under federal law, criminal restitution is mandatory in human trafficking cases. That restitution must compensate the victim for out-of-pocket expenses and other losses. In forced labor cases, the calculation is simple: back wages for the entire period of servitude. In sex trafficking cases, the criminal restitution orders should equal the full value obtained by the trafficker for the victim’s services. The restitution must be ordered in these full amounts, regardless of the defendant’s ability to pay. And it is the responsibility of the federal authorities, specifically the Financial Litigation Units within each U.S. Attorney’s Office, to collect this restitution. Pro bono attorneys play a vital role in ensuring that restitution orders are maximized and distributed to the victims. In some jurisdictions, creative prosecutors have requested that a victim’s pro bono attorney open an escrow account for pre-payment of a restitution order accompanying a plea deal. Because restitution orders are rarely collected, pro bono advocacy in this arena is essential.

Representation on tax matters. In the rare instances where restitution is collected, trafficking survivors face a confusing tax landscape. Pro bono tax attorneys can advocate to ensure that the restitution amounts received remain tax-free (restitution orders under the federal trafficking statute are not subject to federal income tax).

Representation in immigration matters. Trafficking victims who are not citizens or legal permanent residents can obtain immigration relief to remain in the United States. If an individual is a victim of forced labor, forced prostitution, or child commercial sexual exploitation, he or she may qualify for a T-visa, U-visa, relief under the Violence Against Women Act, or special immigrant juvenile status. NGOs handling trafficking cases frequently have immigration attorneys on staff with T-visa expertise. These attorneys can provide training and technical assistance to pro bono attorneys.

Representation in obtaining legal identification documents.Unfortunately, some embassies and nations refuse to assist their own nationals in trafficking cases. Trafficking victims, frequently stripped of their passports and identity documents, must obtain official copies from home country sources. Traffickers also alter and forge documents, which must be corrected. Pro bono advocates are needed to assist in negotiations with embassies and consulates. In some cases, this also requires advocacy with the U.S. authorities.

Representation in family law matters. Some trafficking victims find themselves trapped in fraudulent marriages to their traffickers. Extricating themselves from the trafficking may involve a divorce, child custody issues, and child support. In some cases, protective orders may also be necessary. Pro bono attorneys with expertise in these fields are a welcome addition to the team.

Representation in vacatur actions. A handful of states have adopted laws permitting trafficking victims to vacate all record of criminal convictions if they had been forced to commit these crimes as a result of the trafficking. NGO and Legal Aid attorneys have worked valiantly to implement these new laws through test cases, and soon it may be possible for pro bono attorneys to work with NGO experts to clear clients’ records of all trafficking-related crimes.

Representation in landlord-tenant cases. Trafficking survivors who escape abuse often find themselves living on the edge of financial disaster. Housing is a constant problem. Housing code violations, non-payment of rent, and eviction notices make it more difficult for trafficking survivors to move on and recover from the abuse. Pro bono representation in landlord-tenant cases may assist a trafficking survivor to remain settled and to build a new life.

Representation in civil suits against human traffickers. With amendments to the Trafficking Victims Protection Act in 2003 and 2008, victims of trafficking may bring civil suits against their traffickers in federal courts. Sadly, very few trafficking survivors have used this statute to file civil suits. Since passage of the law nine years ago, trafficking victims have filed only 61 cases. Pro bono attorneys are needed to pursue these causes of action. Federal trafficking claims may be filed along with federal labor law counts, as well as state contract and tort claims. Civil recoveries—either through settlements or judgments—forever change trafficking survivors’ lives. Economic independence places these individuals on much firmer footing. The funds allow the survivors to pursue educational opportunities, support family members, and, ultimately, to succeed.

How to Find a Case

If you are interested in helping with pro bono legal assistance, contact your local NGO and offer to volunteer. Alternatively, contact your local bar association, which may be able to connect you with experts in your region. Many NGOs have created networks and coalitions. The Freedom Network (USA), for example, unites more than 30 NGOs and experts throughout the United States. The U.S. government–funded National Human Trafficking Resource Center hotline (888/373-7888, nhtrc@polarisproject.org) welcomes calls from individuals willing to assist in the fight against trafficking in the United States. And Laurel G. Bellows, American Bar Association president, has declared pro bono representation for human trafficking victims a priority initiative.

Pro bono legal work in this arena can be enormously rewarding. It does require patience, as some of the clients exhibit symptoms of severe trauma. Before taking on one of these cases, consult with NGO experts. Training is essential. At a minimum, resolution of looming legal questions should not inflict additional trauma on trafficking victims.

Conclusion

Trafficking victims in the United States have suffered in agricultural fields, sweatshops, restaurants, factories, private homes, and brothels. Sensitive and competent pro bono legal assistance can help ameliorate this suffering. And that is a goal well worth a pro bono attorney’s time and attention.